The Legality Construction Of Valuation Adjustment Mechanism For Financing Companies As The Main Body:Freedom Of Contract And Control Of Company

In the field of private equity investment,with the continuous development of the financial market and the complex transactions of the company as the business subject in the market,the investment fund and other organizations,which are mainly engaged in investment,as investors,in order to reduce the investment risk caused by the estimation error of the equity value of the financing company,creatively sign a kind of adjustment agreement--Valuation Adjustment Mechanism with the companies that can achieve the valuation of the equity of the financing company.As most of the financing companies with innovative ideas or technologies,in order to quickly raise funds to enter into a benign business state,they often exaggerate to package themselves in the process of financing,depicting a good picture for investors,in order to attract investors to inject funds into the company.Thus,in the investment market,there is a high degree of information asymmetry between investors and financing parties,especially in the business prospects of financing companies,which is likely to lead to the tragic consequences of investment failure.However,if the investors and the financiers can agree on the contractual obligations that the parties need to perform at that time according to the different possibilities of the future operation of the financing company in the adjustment agreement.If the financing company fails to achieve the expected operation objectives or fails to complete the listing,the investors need to be compensated accordingly.The compensation methods include buyback of the company's equity,cash compensation,etc.,then this kind of adjustment agreement can not only urge the financing company to make full use of the funds invested by investors,but also effectively reduce the investment risk caused by the asymmetry of information obtained by investors.However,since the agreement was born in the investment market,there are more and more legal disputes.From the "Haifu case" to the "Hanlin case",there are disputes on the validity of adjustment agreement in the field of adjudication and academic field.The judgment of "Haifu case" and "Hanlin case" has become the wind vane for the judgment of adjustment agreement dispute cases.Courts all over the country have formed a "one size fits all" doctrine that the adjustment agreement is invalid because its content violates the prohibitive provisions of the company law,such as prohibiting shareholders to withdraw capital.Until September 11,2019;through the 319th meeting of the civil administration professional committee of the trial committee of the Supreme People's court,the minutes of the national court civil and commercial trial work meeting(hereinafter referred to as"minutes of the meeting")will carry out a new sort of adjustment agreement disputes.In practice,there is no dispute about the validity of the contract between the investor and the original shareholder or actual controller of the financing company,so this paper also focuses on the situation when the financing company is the main body of the agreement.Although the "minutes of the meeting" has defined a new direction for the judge in the judgment of the adjustment agreement's dispute cases,that is,under the premise that there is no legal invalidity in the gambling agreement,it has affirmed the effectiveness of the adjustment agreement.In addition,it is required to distinguish the effectiveness of the contract itself and the performance of the contract.In this regard,the author believes that it is a major breakthrough in the direction of adjudication of such cases.However,in the stage of fulfilling the adjustment agreement,there are still some problems to be solved in the statement of "minutes of the meeting".The specific performance is that even if the financing company completes the capital reduction procedure,it is not necessarily of substantial significance to protect the creditors of the company,and it is not rigorous to take whether the financing company has profits as the basis to determine whether it supports investors to demand cash compensation.Based on the theory of contract law and from the perspective of freedom of contract,the author makes a deep analysis of the validity of the contract of adjustment agreement,and on the basis of drawing lessons from the practice of private equity investment and the practice of venture capital investment in the United States and the United States to adjust the contract arrangement,explores how to arrange the adjustment agreement in the level of company law regulation in China,and at the same time,the author response to the problem of "minutes of the meeting"This paper is divided into four parts.The first chapter is the theoretical basis of private equity agreement on adjustment and the summary of China's practice.First,it makes a brief theoretical logic foreshadowing from three aspects of the basic meaning,characteristics and causes of gambling agreement,then introduces the practice track of China's dispute resolution on adjustment agreement,and finally leads to the problems left by "minutes of the meeting" that need to be solved.In the second chapter,the author makes a detailed argumentation on the reasons for affirming the legitimacy of adjustment agreement from the perspective of the theory of contract law,including the exploration of the relationship between mandatory norms and autonomy of private law,as well as the distinction between the effectiveness of the contract and the performance of the contract.The third chapter is the core content of this paper.Firstly,the author explores the practice of private equity investment and venture capital investment in Britain and the United States,sorts out and summarizes several ways to adjust the contract arrangement of valuation and analyzes them.Then,combined with the background of the regulation of the company law of China,the author explores the feasibility of the application of some practices of the United States and the United States in China,and finds out the answer to solve the problem of "minutes of the meeting",which is to take the concept of "legal available funds”as the scope to fulfill the terms of share repurchase and cash compensation in the agreement.Finally,from the perspective of corporate governance,the author puts forward a new way to improve the arrangement of adjustment agreement and judge's judgment.